Homer Alaska - News

Story last updated at 4:47 PM on Wednesday, August 8, 2012

Feds deny city appeal in airport shooting



BY MICHAEL ARMSTRONG
STAFF WRITER

The U.S. Ninth Circuit Court of Appeals on Aug. 1 upheld a decision by U.S. District Court Judge Robert Bryan denying a city of Homer appeal in a lawsuit by Cheryl Dietzmann against the city for its role in the March 2006 Homer Airport shooting. In 2008, Dietzmann and her two children filed a federal tort and civil rights claims against U.S. Marshals and Homer Police for their actions in the shooting that left Jason Anderson, the boy's father, dead after he shot himself, and Jason Anderson II, his son, severely injured.

"Ms. Dietzmann and her children are very grateful to the Court of Appeals and the U.S. District Court judges for their thoughtful and well reasoned decisions," said Marion Kelly, Dietzmann's Anchorage lawyer. "Almost six-and-a-half years after the terrible events at the airport, they look forward to their day in court."

While about 100 members of a Homer youth and adult choir group were at the airport waiting to board outbound planes, Marshals and police opened fire on Anderson while he and his children, the boy and his sister, Darla Anderson, were in a Jeep blocked off by police and Marshals at the airport parking lot. The girl was not injured when Marshals and police attempted to arrest the father.

The appellate court decision means that a jury trial against the city can proceed. No trial date has been set. Last summer, the federal government paid a $3.5 million settlement to Dietzmann and the claim against the U.S. Marshals was dismissed.

In its original motion, the city argued that the city and Homer Police officers Sgt. William Hutt, Sgt. David Shealy and Officer Stacy Luck, the officers involved in the shooting, should have qualified immunity, a shield of liability from civil damages when government officials perform their duties provided their conduct does not violate statutory or constitutional rights. Dietzmann's claim also names the Homer Police Department, the city of Homer, Homer Police Chief Mark Robl and Sgt. Lary Kuhns. Kuhns was involved in the attempted arrest of Anderson but did not fire his weapon.

Judge Bryan denied a summary judgment motion by the city seeking dismissal of the case. In his November 2010 decision, he considered the claim of qualified immunity. In making his ruling, he considered specific questions about the case and if the jury would have to decide on them — "issues of fact," in legal terminology. If there are issues of fact, the case could not be dismissed and the case should go to trial for a jury's deliberation.

For example, Bryan looked at whether or not there had been an illegal seizure of the children when police and marshals blocked Anderson's Jeep. Homer Police argued that the children were hostages of their father. Bryan noted it also could be claimed that the children were under Anderson's care as the children's custodial parent. Anderson also showed such case, as by telling a rental car agent he had to first feed the children before going to the airport to exchange a car — the ruse Marshals had set up to lure Anderson into the airport and arrest him. Anderson also didn't want to come into the airport because he had the children in car seats. Whether or not the children were hostages was for the jury to decide, as well as other issues of fact, the judge concluded.

In affirming Bryan's decision denying qualified immunity, the appellate court wrote, "The record reflects factual disputes including whether the children were hostages in Anderson's car at the time of the shootout, whether the Homer defendants had time to deliberate the decision to join the attempted arrest at the airport and whether their actions during the execution of that attempted arrest were a reasonable use of force."

The former Alaska Medical Examiner, Dr. Franc Fallico, concluded in 2006 that Anderson died of a self-inflicted gunshot wound. Fallico said Anderson Sr. shot his son in the face and that the boy's injury was a contact gunshot wound and the bullet entered his face near his left cheek.

Two Homer emergency room doctors who treated the boy, Dr. Paul Raymond and Dr. Paul Sayer, believe the boy was shot in the back of the head and thus not by the father, Kelly said. Dietzmann and her attorneys allege the boy was caught in a crossfire. Dietzmann also has filed a motion for DNA testing on a bullet fragment found in the car, but a ruling has not yet been made.

Jason Anderson II suffered severe brain injuries and remains in 24-hour care at a treatment home in Duluth, Minn., Kelly said.

Homer City Manager Walt Wrede said he could not comment on the case at this time. Dietzmann had made a prior offer of settlement with the city that was rejected, Kelly said.

Michael Armstrong can be reached at michael.armstrong@homernews.com.

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